Introduction

It is not entirely clear at what precise moment a successful candidate in a federal election technically becomes a member of the House of Commons. Among the dates used to mark this transition, the most important are:

polling day/election day;

the day the election writ is returned to the Chief Electoral Officer;

the day the Chief Electoral Officer sends a certified list of members to the
Clerk of the House of Commons;

the day the member takes the oath of office; and

the day the member takes his or her seat.

This paper will examine arguments for and against each of these as the date
on which a duly elected person should be considered a member of the House of
Commons.

Key Dates in Becoming a Member of the House Of Commons

A. Polling Day/Election Day

Section 55(2) of the Parliament of Canada Act specifies that, for
the purpose of remuneration, membership in the House of Commons is deemed to
begin on “the day last fixed for the election of a member of the House of Commons
for the electoral district represented by the person.” Accordingly, an argument
could be made that the polling day or election day would be the day that a successful
candidate becomes a member of the House of Commons; thus, that person should
be regarded as a member from the moment he or she begins to be paid as such.
This date would not necessarily be uniform across all ridings, given the variable
timing of by-elections and, exceptionally, delays in voting.

The problem with using this date to mark the beginning of membership in the
House of Commons is that section 55(2) of the Parliament of Canada Act operates,
in a manner of speaking, by fast-forwarding beyond the gamut of procedural checkpoints
and possible delays (caused by circumstances such as special returns or appeals)
to an arbitrary point when the person has been declared, uncontested, to be a
member. The Act then provides for retroactive remuneration: once declared a member,
the person is entitled to be paid as such as from the date on which he or she
was elected.

On the other hand, the election date has the advantage of being simple and
clear and can be readily determined for every elected member of Parliament for
every election held in Canada.

B. The Day the Election Writ is Returned to the Chief Electoral Officer

Section 313(1) of the Canada Elections Act specifies that, without
delay after the sixth day following the validation of results, the returning
officer shall “declare elected the candidate who obtained the largest number
of votes by completing the return of the writ in the prescribed form on the back
of the writ.” This date would not be uniform across all ridings even in a general
election, as there could be delays caused by, for example, late receipt of some
of the ballot boxes, the loss or destruction of ballot boxes, or recounts. Nonetheless,
one could argue that being declared elected is tantamount to becoming a member
of the House of Commons. The validation of the results by the returning officer
provides the exact time when a single candidate, barring a tie, becomes the elected
or successful candidate.

Furthermore, according to Clerk of the House of Commons Audrey O’Brien and
Deputy Clerk Marc Bosc:

Privilege commences from the time of the Member’s official existence, which is at the moment the deputy returning officer completes the return of the writ with the name of the candidate who received the most votes in a general election or a by election.(1)

It is worth noting that O’Brien’s and Bosc’s assertion relates to the moment
at which parliamentary privileges are conferred upon the elected candidate. Problematic
in this respect was the fact that, prior to 1872, returning officers could and
did return double returns for tied contests. It was then left to the discretion
of the House of Commons to determine which of the two candidates should be declared
elected, a process which did not unfold according to any timetable, and, in at
least one instance, ended without resolution when the House was prorogued and
then dissolved.(2)

Another problem with using this date to mark the beginning of membership in
the House of Commons is the lack of uniformity across all ridings as to the date
on which the writs are validated and returned. For example, if elections are
held in riding A and B on the same date, and the returning officer from riding
A returns the writ on the sixth day after validation, while a recount in riding
B delays that return by one week, would the candidate from riding A be considered
a member before the candidate in riding B? Even when no recount is held, some
returning officers may be more efficient than others in making the declaration,
thus affecting the dates on which different members are deemed elected.

It is unclear whether records are kept of the dates on which election results
for each riding are validated, or whether the Chief Electoral Officer records
the dates of receipt of the writs. Therefore, using the date of the return or
receipt of the writs as decisive in determining when a successful candidate becomes
a member of the House would undoubtedly lead to problems in gathering all of
the necessary documentation, especially for the earliest elections.

C. The Day the Chief Electoral Officer Sends a Certified List of Members to the Clerk of the House of Commons

According to O’Brien and Bosc, “The Chief Electoral Officer also provides
the Clerk with a final certified list of Members elected to the House of Commons.”(3) Officials
in the office of the Clerk of the House of Commons have indicated that they consider
an elected person is to be a member once the election writ, inscribed with the
successful candidate’s name, is received by the Clerk of the House of Commons
from Elections Canada.

The first problem with using the date of the receipt of the list as the first
day of membership in the House is that it is unlikely that the Clerk of the House
possesses and maintains a record of the date of receipt of election writs from
the Chief Electoral Officer for every general election and by-election in the
history of Canada (or at least since the creation of the office of the Chief
Electoral Officer in 1920). In any event, the dates will vary among members elected
in the same election.

Further, in past cases of double returns or special returns, the Chief Electoral
Officer (previously the Clerk of the Crown in Chancery for Canada) returned the
writ to the House of Commons with the names of either two candidates or neither
candidate. It was then for the House to decide who would be declared the lone
certified member. The resolution of such a situation could take several months.
After first enduring the process of his or her being declared the lone serving
member from a double return(4) or
a special return, the candidate would inevitably become a member long after the
rest of his or her colleagues. Therefore, the date on which the election writs
are sent from the Chief Electoral Officer and received by the Clerk of the House
might not be considered decisive.

D. The Day the Member Takes the Oath of Office

O’Brien and Bosc explain that, before duly elected members may take their
seats and vote in the House of Commons, they must first take an oath or make
a solemn affirmation of allegiance or loyalty to the Sovereign and sign the Test
Roll (a book whose pages are headed by the text of the oath).(5) The
obligation for all members of Parliament to take the oath is specified in the Constitution
Act, 1867. There have been cases in other countries where duly elected members
never took the oath of office, and, therefore, were never allowed to take their
seats.

The problem with using the date on which an elected person takes his or her
oath as the date on which he or she becomes a member of the House is first that,
at least in the language used by O’Brien and Bosc, the person is already a member,
and the oath is taken in accordance with the laws governing Parliament so that
he or she may take his or her seat.

Second, the date on which the oath is taken is not the same for everyone. Members arrange with the Clerk’s office the date on which they take their oath or affirmation, depending on such matters as their schedules and the presence of family members.

E. The Day the Member Takes His or Her Seat

O’Brien and Bosc state that after a member’s election certificate has been
received by the Clerk of the House of Commons and he or she has sworn the oath
of allegiance or made an affirmation and signed the Test Roll, the member is
ready to take his or her seat in the Chamber.(6) Presumably,
all or most members physically take their seats in the House when the session
begins – but this can be much later than the election date.

Using the date on which the elected person takes his or her seat to mark the
beginning of membership in the House of Commons has the same shortcomings as
using the date of the oath-taking. Moreover, as in the case of Louis Riel, it
is possible for a member to take the oath and yet not take his or her seat and
still be widely acknowledged as a being a member of Parliament.

Conclusion

The process by which a person becomes a member of the House of Commons is
marked by many dates. It is perhaps possible to declare, on a case-by-case basis,
when a particular individual did indeed become a member. Given the inherent flexibility
of the electoral system, however, determining a decisive moment when all elected
persons become members is more problematic. The difficulty is compounded when
one tries to make a determination that would apply retroactively to all elections
over the course of Canadian history. The most accurate conclusion, although perhaps
an unsatisfying one, is that members of the House of Commons become members at
different times, for different technical reasons.

According to O’Brien and Bosc (2009), a double return occurs when returning
officers are unable to determine which of two or more candidates has been elected.
Each of the members-elect is entitled to be sworn in, but neither can sit in
the House or vote until the matter has been resolved. See also John Bourinot, Parliamentary
Procedure and Practice in the Dominion of Canada, 4thed., Ottawa, 1916, pp. 135–40, where special and double returns are described.

Notes

† Papers in the Library of Parliament’s In Brief series are short briefings on current issues. At times, they may serve as overviews, referring readers to more substantive sources published on the same topic. They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner.[ Return to text ]